Citation Nr: 1335403 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-43 955A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1952 to March 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit Michigan. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's COPD was not manifested in, and not shown to be related to, his military service, to include as due to exposure to asbestos therein. CONCLUSION OF LAW Service connection for a COPD, claimed as asbestosis, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A January 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for a VA examination in November 2009. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board has reviewed all the evidence in the appellant's claims file, and on Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular was subsumed verbatim in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). See also VAOPGCPREC 4-00 (Apr. 13, 2000). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidence of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). A layperson is generally not capable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that he has asbestosis as a result of exposure to asbestos in service. He asserts that he had service aboard a ship from 1952 to 1956; he was a machinist's mate and worked in the engine room. He asserts that his breathing had become progressively worse over the past four to five years, and medications do not seem to help much. The record verifies that he served as a machinist's mate, and was stationed on the USS Power (DD-839) during service. Based on such service, it may be conceded that he had some exposure to asbestos in service. In July 2008 the Veteran was examined by his private physician, Dr. Piontkowski. At that time he reported that he was concerned about his history of asbestos exposure. Physical examination revealed he had normal body habitus, and was well nourished; he was developmentally normal, and in no acute distress. He had normal respiratory effort to auscultation. The assessment, in pertinent part, was COPD. In an August 2008 follow-up examination, it was noted that the Veteran's COPD was stable. He denied any worsening of shortness of breath, cough, wheezing and/or declining exercise tolerance. The assessment was COPD. March 2009 chest x-rays revealed no active pulmonary disease. Laboratory findings showed lungs were diminished, but clear on auscultation with no overt shortness of breath and oxygen saturation was 98 percent on room air. In July 2009 the Veteran underwent a private cardiac evaluation by Dr. Harris. In a July 2009 letter to Dr. Piontkowski, Dr. Harris related the details of his evaluation of the Veteran. He noted that the Veteran had a history of hypertension and hyperlipidemia, cigarette smoking, and diabetes. He had a normal electrocardiogram. He had shortness of breath and had previously been diagnosed with bronchitis and emphysema. He denied ever having a pulmonary evaluation but stated that he was followed by VA regarding asbestos exposure while in the Navy. On physical examination the Veteran was in no acute distress. His chest and lungs were clear to auscultation; there were no wheezing, crackles, rales, or rhonchi. The diagnosis, in pertinent part, was COPD as well as possible pulmonary fibrosis on previous x-ray with history of asbestos exposure. A September 2009 private examination report revealed the Veteran presented with complaints of low-grade fever for 3 days, fatigue, lethargy, and productive cough. He denied any chest pain or shortness of breath. He related that he was working with VA regarding his claim for asbestos exposure that occurred when he was in the military and worked as a machinist mate on ships for 3 1/2 years. On physical examination he had normal respiratory effort; he had expiratory wheeze bilaterally. The assessment was COPD. September 2009 chest x-rays revealed densities projected over the left lower lung field region. Both lung fields were mildly hyperinflated. There was no acute infiltration, consolidation, congestion, or pleural effusion on either side. The impressions were focal nodular densities projected over the left lower lung field near the diaphragm, presumed to be superimposed artifacts from the bowel content; otherwise, no acute disease process and no change. October 2009 chest x-rays revealed minor chronic changes in the lungs with hyperinflation. Granulomatous scars were interpreted. There was no acute infiltration, consolidation, congestion, or pleural effusion on either side. The previously noted nodular densities projected over the lung base region were no longer seen; they represented superimposed artifacts. The impressions were minor chronic changes with mildly hyperinflated lung fields. There was no change, no acute disease or new pathology. An October 2009 CT [computed tomography] scan of the chest (without contrast) showed diffuse changes of mild central lobular emphysema. There were no diffuse fibrotic or nodular changes in the lungs but there were apical changes bilaterally with pleural caps on both sides and in addition there was a crescentic pleural based density in the right lobe. A similar much smaller pleural plaque was seen in a corresponding position on the left side. There were no other findings of concern in the lungs. The impression was bilateral upper lobe changes along with evidence of emphysema; these were of concern with the Veteran's history of asbestos exposure. In a statement dated in October 2009, Dr. Piontkowski noted that the Veteran had a history of working in the Navy for 31/2 years as a machinist mate, and also a history of chronic asbestos exposure during the first 31/2 years while working on naval ships. He also noted that the Veteran had a history of COPD and asbestosis, and continued to follow-up with pulmonology. He was on inhalers and recent chest x-rays revealed evidence of COPD. On November 2009 VA respiratory system examination, the examiner noted that all medical records including the claims file were reviewed in detail. He noted that the Veteran had a history of tobacco abuse; he had smoked a pack of cigarettes a day for 40 years. He was a factory worker and worked as a pipefitter. His medical history included no history of trauma to the respiratory system, respiratory system neoplasm, pneumothorax, empyema, asthma, cough, hemoptysis, wheezing, or respiratory failure. He had a history of dyspnea on severe exertion. On physical examination there were no abnormal respiratory findings, nor conditions that may be associated with pulmonary restrictive disease. Chest x-rays showed no active disease. His lungs were clear. There were no pleural effusions. Pulmonary function tests showed mild COPD with no significant response to bronchodilator. There was diminished diffusion capacity which could be seen in association with parenchymal lung disease, anemia, or pulmonary vascular disease, such as hypertension. The diagnosis was mild COPD. The etiology was tobacco abuse. The examiner noted that there was no confirmed histological diagnosis of asbestosis. She opined that the Veteran's COPD was not caused by or a result of military service. Her reasoning was that the Veteran had a 40-year history of tobacco abuse, and he worked for 33 years as a pipefitter. In a February 2010 statement, Dr. Piontkowski noted that the Veteran had a known history of COPD and asbestosis; and it was felt that his history of asbestos exposure while serving in the Navy was a cause for his breathing problems and COPD. In an October 2010 statement, Dr. Piontkowski noted that the Veteran served in the military for 31/2 years as a machinist mate and had been exposed to asbestos. He had a history of COPD, which had been felt to have been caused by his history of asbestos exposure. He occasionally experiences exacerbations of COPD, particularly when he had an infection. He used inhalers on a regular basis. In a November 2010 statement, Dr. Piontkowski noted that the Veteran had a diagnosis of asbestosis with COPD. His symptoms of exertional dyspnea, and chronic cough started approximately 15 years after his exposure of asbestos during his work with the United States Navy. He does have findings consistent with asbestos on CT scan. The Veteran's history of asbestos exposure and current symptoms is consistent with asbestosis and COPD. As indicated above, because the Veteran served as a machinist's mate on a Navy ship in the 1950's, it may reasonably be conceded (for purposes of this appeal) that he indeed (as alleged) was exposed to asbestos in the course of his service duties. The Veteran's STRs including his service separation examination report do not mention COPD. While his service enlistment medical history report in 1952 noted he had sinusitis there was no subsequent treatment for that disorder during his period of active service and there was no mention of it at the time of his separation from service. The record reflects that the Veteran did not have pulmonary or respiratory problems during his period of active duty service, nor were pulmonary or respiratory problems manifested in the immediate postservice years. Consequently, service connection for COPD on the basis that such disease became manifest in service and persisted is not warranted. What remains for consideration is the matter of a nexus between the Veteran's COPD/asbestosis and his service/exposure to asbestos therein. While Dr. Piontkowski has indicated that the Veteran had a history of COPD and asbestosis his treatment records are negative for a diagnosis of asbestosis. And, although his November 2010 statement notes that the Veteran's history of asbestos exposure and current symptoms are consistent with asbestosis and COPD that does not constitute a diagnosis for asbestosis in accordance with M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). Under that provision, a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. The radiographic evidence of record shows findings inconsistent with a diagnosis of asbestosis. The October 2009 CT scan of the chest shows no diffuse fibrotic or nodular changes in the lungs. Furthermore, the November 2009 VA examiner confirmed that there was no histological diagnosis of asbestosis. While a diagnosis of asbestosis is not shown, there is competent evidence that the Veteran has a current diagnosis of COPD. Consequently, the Board must determine whether there is competent evidence that otherwise relates the Veteran's COPD to his service. The evidence in support of the Veteran's claim includes four statements from his private doctor (Dr. Piontkowski). Dr. Piontkowski opined that the Veteran's COPD is related to asbestos exposure in service. The Board finds his opinion to be of little probative value. An evaluation of the probative value of a medical opinion is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. The credibility and weight to be attached to such opinions are within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Dr. Piontkowski apparently had access to some of the Veteran's medical records (although he did not have access any service or VA treatment or records). His opinion reflects that he relied on the Veteran's accounts and does not reflect a review of the entire record or familiarity with the Veteran's complete disability picture. Significantly Dr. Piontkowski did not acknowledge the Veteran's 40-year history of tobacco use or his job as a pipefitter (in a factory) for 33 years, and does not appear to have considered that his COPD might be related to either of those things or a combination of them. Furthermore, the opinion is unaccompanied by rationale for the stated conclusion. Therefore, it is lacking in probative value. The Board finds the November 2009 VA examiner's opinion warrants greater probative weight. She based her opinion on review of the evidentiary record; her opinion reflects familiarity with the factual evidence; and is accompanied by an explanation of rationale (which identifies more likely, postservice, etiology for the Veteran's COPD (40 years of tobacco abuse and 33 years of working in a factory as a pipefitter)). As noted, the Veteran's current COPD has been related to his use of tobacco products. The November 2009 VA examiner specifically concluded that the etiology of the Veteran's COPD was tobacco abuse. The Board notes that not only has the Veteran indicated that he has been smoking for 40 years, but also, for all claims filed after June 9, 1998, as here, governing law (38 U.S.C.A. § 1103 ) specifically prohibits service connection for a disability on the basis that it resulted from the use of tobacco products in service. The Veteran's own statements relating his COPD to his asbestos exposure in service are not competent evidence in the matter. Whether or not an insidious disease process such as COPD is (or may be) related to remote service/environmental exposures therein is a complex medical question that requires medical expertise. The Veteran is a layperson with no medical training. See Jandreau, 492 F.3d 1372. Furthermore, there is no objective evidence that a COPD was manifested prior to 2008. A lengthy time interval (approximately 52 years) between active service and the initial diagnosis of COPD is, of itself, a factor weighing against a finding of service connection for the claimed disability. In light of the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's COPD is in any way related to his service, to include his exposure to asbestos therein. Accordingly, the claim of service connection for COPD, claimed as asbestosis must be denied. Gilbert, 1 Vet. App. at 55-56. ORDER Service connection for COPD, claimed as asbestosis, is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs